044.pdf

Case 9:08-cv-80380-KAM Document 44 Entered on FLSD Docket 08/12/2008 Page 1 of 13 JANE DOE NO. 2, vs. JEFFREY EPSTEIN. JANE DOE NO. 3, vs. JEFFREY EPSTEIN. JA:\JE DOE NO. 4, vs. JEFFREY EPSTEIN. JANE DOE NO. 5, VS. JEFFREY EPSTEIN. I I I I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80232-CIV-KAM-LRJ CASE NO.: 08-80380-CIV-KAM-LRJ CASE NO.: 08-80381-CIV-KAM-LRJ FILED UNDER SEAL* EPSTEIN'S REPLY IN SUPPORT OF MOTION TO ST A Y ' This motion is filed under seal because the deferred-prosecution agreement between the United States Attorney's Office and Mr. Epstein, discussed herein, contains a confidentiality clause. A motion to seal has been filed contemporaneously. Case 9:08-cv-80380-KAM Document 44 Entered on FLSD Docket 08/12/2008 Page 2 of 13 The Pending Federal Criminal Action In 2006, a Florida state grand jury indicted Jeffrey Epstein on allegations similar to those in the instant actions (State of Florida v. Jeffrey Epstein, Case No. 2006 CF 09454, Fifteenth Judicial Circuit. Palm Beach County) (the ''Florida Criminal Action"). 1 Shortly thereafter, the United States Attorney's Office for the Southern District of Florida (the "USAO") began a federal grand-jury inYestigation into allegations arising out of the same incidents alleged in the instant actions (Grand Jury No. 07-103 (WPB), 2 United States District Court for the Southern District of Florida) (the "Federal Criminal Action"). In September 2007, the USAO and Mr. Epstein entered into a highly unusual and unprecedented deferred-prosecution agreement (the ''Agreement"), in which the USAO agreed to defer (not dismiss or close) the Federal Criminal Action on the condition that Mr. Epstein continue to comply with numerous obligations, the first of which was pleading guilty to certain state charges in the Florida Criminal Action. The Agreement itself uses the term "deferred" (rather than ·'dismissed" or "closed") to describe the status of the Federal Criminal Action: THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement .... Agreement, at 2. By no stretch did the USAO finalize, close, complete, dismiss or abandon the Federal Criminal Action. Indeed, as the lead federal prosecutor recently explained, the USAO merely 1 Since the filing of the motion to stay, Mr. Epstein has pied guilty and been sentenced in the Florida Criminal Action. See Notice Concerning Mc,tion to Stay (7/1/08). Accordingly, the Florida Criminal Action is no longer a basis for this stay. Epstein relies exclusively on the pending Federal Criminal Action for this motion and therefore here provide, additional ba:kground information relating to that action. " At the USAO's request. we wish to clarify a minor issue regarding the form of a citation in Epstein's initial memorandum supporting his motion to stay. That memorandum cites to the Federal Criminal Action as "In rg_ Grand Jury No. 07-103 (WPB)," ·ather than citing it simply as "Grand Jury No. 107-103 (WPB)." See Motion to Stay, at 2 (6/20/08 ). Technically, a citation to ··111 re Grand Jury No. 07-103 (WPB)" could be interpreted as referring to litigation arising from Epstein's motion to quash a subpoena previously issued by ·'Grand Jury No. 07-103 (WPB),"' which subpoena, according to the terms of the deferred-prosecution agreement between Epstein and the USAO described infra at 1-3, the USAO is presently holding in abeyance. Accordingly, we hereby clarify that our citation on Page 2 of our motion to stay denoted the grand-jury investigation itself, not litigation arising from that grand-jury investigation. Case 9:08-cv-80380-KAM Document 44 Entered on FLSD Docket 08/12/2008 Page 3 of 13 "agreed to defer federal prosecution in favor of prosecution by the State of Florida .... " See In re: Jane Doe, Case No. 08-80736-CIV-Marra/Johnson (S.D. Fla.) (DE 14), Deel. of AUSA Villafana, 07/09/08, ~ 5, attached hereto as Exhibit "A" (emphasis added). Under the Agreement, the USAO presently retains the continuing right to indict Mr. Epstein - - or to unseal "any'' already-existing federal "charges" that may already have been handed up by the federal grand jury and sealed - - should he breach any of its provisions. Agreement, at 2. The period of the deferral continues until three months after Mr. Epstein completes service of his sentence in the Florida Criminal Action. Id. Indeed, the final three months of the Agreement's term constitute an extended period during which the USAO expressly retains the ability to evaluate whether Epstein committed any breaches of his numerous obligations under the Agreement while he was serving his state sentence, and, if it so determines, reserves the right to indict ( or unseal an existing indictment against) Mr. Epstein - - even after he has completed serving his entire state sentence. The Agreement further provides that upon Epstein's execution of a plea agreement in the State Criminal Case, the Federal Criminal Action "will be suspended" and all pending grand-jury subpoenas "will be held in abeyance unless and until the defendant violates any term of this agreement.'' Agreement, at 5 (emphasis added). The Agreement directs the USAO and Epstein to '·maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued," and to maintain such evidence "inviolate." Id. (emphasis added). It also expressly provides that the grand-jury subpoenas continue to remain "outstanding" until "the successful completion of the terms of this agreement." Id. (emphasis added). Finally, the Agreement provides that the USAO's declination of prosecution for certain enumerated offenses and dismissal of any existing (sealed) charges will not occur until 90 days following the completion of his state sentence: If the United States Attorney should determine, based on reliable evidence, that, during the period of the Agreement, Epstein willfully violated any of the conditions of this Agreement, then the United States Attorney may, within ninety (90) days following the expiration of the term of home confinement discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has 2 Case 9:08-cv-80380-KAM Document 44 Entered on FLSD Docket 08/12/2008 Page 4 of 13 violated, and shall initiate its prosecution on any offense within sixty (60) days' of [sic] giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph shall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulfilling all the terms and conditions of the Agreement, no